Nicholson v. Blanchette

Barnes, J., delivered the opinion of the Court. The appellant, Louis S. Nicholson (defendant) was the de ¹⁷² fendant below in an action at law instituted by the appellees, Sadie A. Blanchette (Sadie) and, her husband, William A. Blanchette (William), as plaintiffs below, to recover for Sadie’s personal injuries (Count I of the declaration) and for William’s property damage and damages suffered by him from his wife’s injuries, resulting from the negligent operation of an automobile by the defendant, (Count II). The injuries occurred on June 27, 1960 when the defendant drove his automobile into the rear of an automobile owned jointly by the plaintiffs and driven by the plaintiffs’ daughter, Mary Ellen Blanchette, in which Sadie was a passenger on the right front seat of that automobile. Sadie suffered severe injuries to her right shoulder, neck and arms and incurred substantial doctors’ bills, hospital bills and other expenses.

The damages claimed in Count I were $100,000 and in Count II, $50,000. The case was tried before Judge Moorman and a jury. The jury returned verdicts for $20,000 for Sadie and for $15,000 for William; judgments were duly entered upon those verdicts after the trial court had overruled motions for a new trial, judgment n.o.v., and for a remittitur which had been timely filed by the defendant. The defendant, as appellant in this Court, complains of six alleged errors.

They are: 1. The remarks and actions of the trial judge were prejudicial to the defendant. 2. The trial court erred in its treatment of the mention of the ad dammum clause in the opening statement and closing arguments on behalf of the plaintiffs. 3. The trial court erred in refusing to grant the motion of the defendant tO' strike out the testimony of Dr. Rizzoli. 4.

The trial court erred in admitting into evidence certain hospital and doctors’ bills and certain testimony allegedly not in conformance with the pleadings. 5. The trial court erred in instructing the jury. 6. The trial court erred in overruling the motion of the defendant made in accordance with Maryland Rule 243(b) and in refusing to instruct the jury to limit the damages of the plaintiffs to their motor vehicle. We have concluded that the trial court did not commit prejudicial error and that the judgments must be affirmed.

We will ¹⁷³ consider the six points raised by the defendant in the order above set forth. I. Counsel for the defendant made a motion for a mistrial because counsel for the plaintiffs during the opening statement to the jury mentioned that the plaintiffs were asking for $100,-000 damages. The record indicates that prior to this motion, counsel for the defendant had made two other motions which had been overruled by the trial court, i.e., 1) “that the plaintiffs in presenting evidence and testimony be limited strictly to the Declaration which is in the file” and 2) “that with respect to Count Two that no proof be offered with respect to claim for loss of consortium or services by the husband because none of that is mentioned in Count Two of the Declaration which sets forth the husband plaintiff’s claim.” Then follow the remarks of counsel for the defendant and the court: “Counsel: “Your Honor, I ask you to make sure that my motion is on the record. The Court has admonished me, in front of the jury, in a harsh tone, to return to the Bench and I am perfectly willing to return to the Bench but I have a right to protect my client’s interest and that is what I have to do and I regret that I have to make this motion but I think I am entitled to a new trial on the previous motion, and I make another motion for a mistrial because of your admonishment of me in front of the jury, in harsh tones.” THE COURT: “Mr. Schroeder, you made your objection.

The Court called you up to the Bench and did admonish counsel for the plaintiff, in effect, to be a bit more circumspect in his argument. It was perfectly obvious to you that the Reporter was recording everything that was on your objection, as well as the motion that was over-ruled. Twice the Court over-ruled the motion. Three times you said, in a loud, impudent voice, that you wanted your objections and the rulings recorded.

It was obvious that they were being recorded. ¹⁷⁴ “The only reason the Court doesn’t cite you for contempt is because of your obvious instability and over-excitement.” The record indicates that the remarks of the trial court, above quoted, were made at a bench conference and there is nothing to show that they were heard by the jury. The defendant has not sought to correct the record under Maryland Rule 827, so that we must assume that the record is correct. We notice that in another portion of the record at a subsequent bench conference, the trial court requested counsel to lower their voices so that the jury would not hear the colloquy between court and counsel. We must assume that these remarks were not heard by the jury.

If not heard by the jury, the remarks obviously could not have prejudiced the outcome of the trial. Even if they had been heard by the jury, and the question of possible prejudice were before us, it would appear that these remarks would not constitute reversible error. Cf. General Automobile Owners’ Ass’n. v. State, use of Penn, 154 Md. 204, 212-213 , 140 A. 48 (1928).

The defendant also complains that the remarks of the trial court during rulings on evidence and motions during the course of the trial showed that the trial court indicated that he was favorable to the plaintiffs and hostile to the defendant. It is not necessary to set out these remarks in detail. There is no doubt that the trial court in this case maintained a “tight rein” on both counsel for the plaintiffs and for the defendant. The trial court’s remarks in his rulings were often positive and colorful, but the whole record indicates to us that they were applied impartially to counsel for both parties and that they indicate no prejudice against, or favoritism toward, either of the parties.

See Taylor v. City of Berwyn, 372 Ill. 124 , 22 N. E. 2d 930 (1939) in which it was held that no prejudice on the part of the trial court against one of the parties was shown by the admonition by the trial court of the attorneys for both sides following heated statements that unless they conducted themselves properly, it would be necessary to fine one of them, for contempt in the presence of the jury. In any event, counsel for the defendant-made no objection ¹⁷⁵ on the ground of impropriety of the remarks or any prejudice to the defendant either when the remarks were made or even in the defendant’s motion for a judgment n.o.v., for a new trial or for a remittitur. We do not think the defendant has preserved any point in regard to the remarks which we may consider on appeal. See Maryland Rule 885; Tufts v. Poore, 219 Md. 1, 15 , 147 A. 2d 717 (1959).

Nor does the defendant point to any prejudice resulting to the defendant from the trial court’s remarks. A review of the entire record indicates to us that there was no such prejudice. Finally, even if we were to assume for the argument only that some of the remarks might have indicated to the jury that the trial court had an opinion in regard to certain facts, this was dispelled by the instruction of the trial court to the jury in which the trial court stated: “Now, during the course of this trial it has been the Court’s duty, as a matter of law, to rule upon questions of evidence. Those rulings should not concern you, and I instruct you that neither by these instructions nor by any ruling that I have made do I, or have I, intended to reflect my opinion in relation to the facts.

And if by these instructions, or any ruling or tone of voice, or other conduct you may have gleaned the idea that the Court had an opinion in relation to the facts, you are instructed to totally disregard them.” See Western Maryland Dairy Corporation v. Brown, 169 Md. 257 , 181 A. 468 (1935).

II

In the opening argument of counsel for the plaintiffs reference was made that the plaintiffs claimed $100,000. This was the amount of the ad damnum clause in Count I of the declaration, setting forth the claim of Sadie. Counsel for the defendant made a timely motion to declare a mistrial which the trial court overruled. After the trial court’s instructions to the jury, counsel for the defendant moved that the plaintiffs’ counsel be instructed to refrain from mentioning the ad damnum clause ¹⁷⁶ in his final argument.

This motion was also denied by the trial court, and an exception was noted. In his closing argument, counsel for the plaintiffs mentioned to the jury the amount claimed in Count I ($100,000) and Count II ($50,000) and a timely objection was made and overruled by the trial court. No specific instruction on this aspect of the case was requested by the defendant. The trial court in the charge to the jury stated: “Now, you determine the facts, of course, from the evidence.

The evidence consists of the testimony of witnesses that came to you under oath from the witness stand, and the exhibits that were introduced. The argument, statements and remarks of counsel does not constitute evidence, and any statement, remark or argument of counsel not based on the evidence should be totally disregarded by you.” Later in the charge, the trial judge instructed the jury “* * * you, the jury, should allow her such sum of money as will, in your opinion, be fair and just compensation for the injuries she sustained as a result of the accident,” and, still later in the charge “then you may award damages which, in your opinion, would be fair and just compensation for the injury sustained.” (Emphasis supplied). There is a division of authority in the decisions of our sister States in regard; to whether it is reversible error for counsel to mention the amount of the ad damnum clause or to permit the jury to have the declaration showing the amount of that clause. We passed upon this matter in Jimmy’s Cab, Inc. v. Isennock, 225 Md. 1 , 169 A. 2d 425 (1961) in which counsel for the plaintiff mentioned the amount of the ad éamnum clause in his opening statement.

The trial court in the Isennock case instructed the jury that opening statements and arguments of counsel were not evidence and that the jury’s decisions both on the questions of recovery and of damages “are to be determined by you from the consideration of all of the evidence from the stand and under the rules of law that the Court has given you in its charge.” The judgment for the plaintiff was affirmed. Judge Marbury, for this Court, stated: ¹⁷⁷ “Whatever may be the practice in some of the other states and in some of the trial courts of this State we rest our decision upon Rule 558a that it is within the trial court’s sound discretion to permit the jury to have the declaration, including the ad damnum. In cases where the Court would not be disposed to allow the jury to take the declaration to the jury room, but where counsel either inadvertently or intentionally mention the ad damnum in the opening statement or in argument to the jury, the trial Court should be careful to instruct the jury that the opening statement and argument of counsel are not to be considered as evidence and that their verdict must be based upon the law and evidence in the case. “We think that the trial judge in this case properly instructed the jury in his supplemental charge and find no reversible error in his overruling appellants’ motion for a mistrial.” When one considers that the medical expenses were in excess of $9000 and that there was evidence from which the jury could find a substantial degree of permanent injury resulting from the accident, the verdicts of $20,000 for Sadie and $15,000 for William—a total of $35,000—as compared with the total of $150,000 claimed in the ad damnum clauses indicates that the jury was not in any way misled or influenced by the mention of the amounts in those clauses. Cf.

Harper v. Higgs, 225 Md. 24, 40-41 , 169 A. 2d 661 (1961). The trial court’s charge was sufficient to indicate to the jury that the remarks and arguments of counsel were not evidence, that the issues in the case could only be determined by evidence produced from witnesses in court and exhibits offered, and that the damages should be those which in the opinion of the jury would be fair and just compensation for the injuries resulting from the accident. If we assume, arguendo, that the issue is before us in view of the absence of objection to the charge, we are of the opinion that these instructions comply with our holding in Isennock and there is no reversible error presented on this issue. ¹⁷⁸ III. We now come to the question of whether the trial court erred in refusing to grant the motion of the defendant to strike out the testimony of Dr. Rizzoli.

Dr. Rizzoli, a neurosurgeon, testified for the plaintiffs. Dr. Queen, Sadie’s attending physician, had referred Sadie to Dr. Rizzoli for surgery to relieve the continuing severe pain from nerves connected with her cervical spine. On April 28, 1961, the operation was performed and the C6 and C7 nerve roots were decompressed. The operation was successful and Sadie received substantial relief from the prior-existing pain.

In his medical report, Dr. Rizzoli had written that Sadie had told him that the accident had occurred on July 1, 1960. He testified that later he learned that this date for the accident was incorrect but he made no effort to correct the report as he “didn’t think it was my job, nor did I think it was germane to my part in the treatment of this patient.” Dr. Queen testified that Sadie had called him either the evening of the accident, June 27, 1960, or the following day, informing him of her injuries resulting from it. William testified that the accident occurred on June 27, 1960, that Sadie’s injuries resulted from that accident and that she was not involved in any accident on July 1, 1960. Dr. Spence also testified that when he took Sadie’s history, she told him that the accident occurred in June 1960.

It seems clear to us that the trial court properly declined to strike out Dr. Rizzolis’ testimony, or to instruct the jury to disregard it in its entirety, but properly left the weight of his testimony to the jury. ' The defendant also complains that his counsel was not furnished a copy of Dr. Rizzoli’s medical reports prior to trial. There is no agreement of counsel for the plaintiffs to furnish a copy of Dr. Rizzolis’ medical reports in the record. In Sadie’s answer to the defendant’s interrogatories she lists five physicians who had treated her for her injuries resulting from the accident, one of whom was “Hugo V. Rizzoli, M.D.—4-6-61, present, diagnosed injury neck, shoulder, right arm. Performed surgery—cervical Laminectomy with Decompression of Cervical Root.” In addition, the defendant took the depositions of both ¹⁷⁹ Sadie and William in both oí which there was testimony in regard to Dr. Rizzoli’s treatment of Sadie.

The defendant did not take Dr. Rizzoli’s deposition, nor did he ask for a continuance on the ground of surprise. We cannot see from the record how counsel for the defendant could have been surprised, or if so, why he failed to move for a continuance. Having failed to move for a continuance and having gone forward with the case, he waived any objection based upon surprise.

IV

Sadie had a history of previous illnesses not connected with the accident of June 27, 1960. In regard to the charges made by two of the physicians and by the Washington Hospital Center, certain charges were connected with treatment for conditions resulting from the previous illnesses. The amounts charged for the treatment of pre-accident conditions, however, were subtracted from the original bills containing both charges. For example, Dr. Queen originally testified that his total bill was approximately $1300, but after subtracting the charges for the treatment for unconnected conditions, he testified that the net bill for treatment resulting from the accident of June 27, 1960 was $866.00.

This evidence was received without objection and we can find no prejudice to the defendant from the admission of this evidence. A similar situation occurred in connection with the hospital bill, the net amount of which was $1,026.90 according to Dr. Queen’s testimony after deducting the unconnected items. There is no evidence in the record that the original bill for a higher amount was even shown to the jury. Again there was no prejudice to the defendant from this testimony.

The testimony of Dr. Rizzoli giving the net amount of his bill as $2,089.93 accompanied by a withdrawal of the original bill was also not prejudicial to the defendant. The point that Dr. Rizzoli’s report indicated the date of the accident as July 1, 1960 has already been disposed of in Part III of this opinion. The claim of William in regard to drugs purchased for treatment of his wife in the amount of $248.39, and the reasonable and necessary cost of his transportation to and from physicians’ offices and hospitals in a total amount of $547.50 was supported by the evidence. These damages were foresee ¹⁸⁰ able and reasonable expenses resulting from the defendant’s negligence.

There was no prejudice to the defendant from the trial court’s rulings on this testimony. V. At the first bench conference, counsel for the defendant called the trial court’s attention to Count II of the declaration and moved that no proof be offered with respect to a claim for loss of consortium or services by William because none had been mentioned in the declaration. Count II of the declaration alleged, inter alia: “As a result of the negligence, recklessness and carelessness of the defendants aforesaid, and without any negligence of the plaintiff’s contributing thereto, the plaintiff, William A. Blanchette, suffered damage to his automobile and suffered and continues to suffer damages because of the injuries caused his wife, the plaintiff, Sadie A. Blanchette, who has required medical care and treatment and will continue to require medical care and treatment all of which will be the expense of the said William A. Blanchette.” This motion was overruled. In the trial court’s charge to the jury, the following was stated: “You may consider the damages to his automobile and you may consider the loss of services, the loss of consortium of him with his wife, which includes the loss of her assistance and her society as well as the loss of sexual relations, and you will enjoy 1 him such sum of money as will, in your opinion, be fair and just compensation for the expenses and for the loss of consortium that you may think he has incurred.” Counsel for the defendant excepted to this portion of the charge on the ground that “there is no evidence in this case ¹⁸¹ that these people ever had sexual relations after the conception